The issue: Offensive to is not the same as the offending of

Text: Daan Rutten / Photography: Ronald van den Heerik

According to criminal lawyer Paul Mevis, the outcome of the legal proceedings on MP Geert Wilders’s controversial comments is extremely complex and uncertain. The proceedings in themselves may become a criterion for the criminal liability of such remarks in the future, since no detailed legal precedents are yet in existence.

Will the court punish Geert Wilders for remarks such as ‘the Koran is the Mein Kampf of a religion that contends that others should be eliminated’? “I am neither able nor willing to comment on criminal proceedings that are still before the court; the court’s judgment will decide the matter.”

You published an annotation in the Dutch Law Reports magazine concerning the Supreme Court’s ruling on 10 March 2009 in criminal proceedings relating to a poster with the slogan: ‘Stop the tumour called Islam’. The Court of Appeal found the defendant guilty, but he was acquitted by the Supreme Court. You described the tremendous problems involved when assessing whether there are grounds for conviction under criminal law. “A debate is currently going on about where exactly the limits lie with respect to comments regarded as controversial. Well, criminal law deals with the absolute limits of what is permissible. Criminal law wants to respect freedom of speech and ensure scope for discussion and debate. The most obvious response to a displeasing opinion is to express a different opinion contesting the first one. But criminal law actually does impose restrictions. People like you and me want to go to the football match between Feijenoord and Ajax without having to listen to the well-known slogans that are hurtful to Jews, for instance. This is a question of our attitudes towards one another in public places. But on the other hand, certain things that are offensive to a certain group, such as indirectly offending religious people who are hurt by remarks about their religion, are not yet regarded under criminal law as the offending of a certain group of persons through their religion, which may indeed be punishable. In certain cases, however, this distinction is very difficult to make. It can only be assessed on a case-by-case basis.”

If you steal something, of course you know you can be convicted of theft. But if you make certain comments, you can’t possibly know in advance whether these comments are punishable. And cabaret artistes and opinion makers on television just say exactly what they like in the meantime. Isn’t that very confusing for ordinary citizens? “With respect to most remarks, it’s pretty obvious whether you can or can’t make them. But it’s at times like the present, when limits are being explored, that we can see that people are also discovering grey areas in what is permissible and what isn’t. Criminal law has to exercise caution here, and it can’t start determining the quality of the debate either. That’s why there are advantages to a lack of clarity on whether certain ‘comments’ are permissible or not. Nowadays some words no longer have the controversial overtones they used to have. Criminal law has to be able to take these developments into account; the law can’t tell people in detail what they can or can’t say.”

A remark has to be ‘objectively offensive’ before the court can impose sanctions. What exactly does ‘objectively offensive’ mean? “The first question we need to ask is whether a remark is actually offensive. If so, we must then ask ourselves whether the remark is not acceptable, in spite of its offensiveness, as a contribution to the public debate, in view of its context. If so, perhaps the words uttered are unnecessarily hurtful? However, that last point has not yet been elaborated further as a criterion. The Public Prosecutions Service was initially unwilling to prosecute Wilders for some of his comments, and the Court of Appeal has rejected many of the complaints about them. Only a very small number of Wilders’s comments were sufficiently offensive for the Court to order prosecution in accordance with certain articles in the law.”

If I were a Muslim, for instance, and somebody on the street called me a f-- Muslim, would it be possible to have this person convicted? “That is not the right way of putting it.”

But wouldn’t it be a good thing to get an idea of how this works? “Let’s imagine that you feel offended by somebody’s remark. In that case, there’s been a communication breakdown, and your first step would then be to speak to this person about his remark and see if you can resolve it that way. If this has no effect, you can report the incident, which will set the legal system in motion. But there’s still another point to be considered. Although thousands of offences are committed every day, the legal system can’t very well come down like a ton of bricks on each of these offences. It would soon crack up if it did. Criminal law deals with the outer limits, and it doesn’t exist in order to curb social developments or conflicts without good reason. A sense of indignation alone is usually insufficient grounds for the Public Prosecution Service and the courts. And the law doesn’t want to anticipate the public debate, although it does follow certain developments.”

What about the criminal liability of blasphemy? “The law still prohibits people from making comments that will offend religious sensibilities. But this penal provision - the notorious Article 147 of the Penal Code - hasn’t been enforced for a long time. And there are plans afoot to abolish this article because nowadays there are so many people who aren’t religious. However, the Supreme Court cited the relevant article on blasphemy in its important ruling on 10 March 2009, although it added that the criminal proceedings did not centre on this article. There must be a reason why it was mentioned. Did the Supreme Court mean that the article ought to regain significance in the future? We don’t know the answer to that; this point will have to be elucidated further.”

It’s all very complicated. Wouldn’t it be a lot clearer if everyone were allowed to say whatever they wanted, as long as they didn’t actually suit the action to the word and deport Muslims or throw gay people off high buildings? “That depends. For instance, people in the Netherlands feel that MPs should be able to say what they like, at least if they’re actually in Parliament. Criminal law cannot touch this, although of course the Speaker of the House of Representatives can monitor the quality of the debate. So MPs can’t just say whatever they want during a debate. And we can’t let everyone do exactly as they like either. First of all, do we really want this? And secondly, the Constitution only permits freedom of speech ‘subject to everyone’s responsibility towards the law’. Finally, we mustn’t forget the International Convention on the Elimination of All Forms of Racial Discrimination and the European Human Rights Convention, which sometimes force the law to take action against people who make offensive remarks.”

It’s strange that those who have accused Wilders of saying that the Koran represents a fascist ideology have compared Wilders’s party with the Dutch National Socialist Movement. Aren’t they making the same mistake here? “You’re right, it’s not the most sensible comparison to make. Apart from the limits that really do exist, it might constitute an argument in favour of holding the debate in this way. And besides, it’s too complicated to be able to formulate general standards. New sensibilities have recently developed that haven’t come into question for a long time, since author Gerard Reve appeared in court on charges of blasphemy (known as the Ezeltjesproces). As a result of the Supreme Court’s ruling on 10 March 2009, among other things, case law in this field is still developing and is not yet fully detailed, and freedom of speech can sometimes clash with the protection of individuals and groups. A great deal of discussion is going on in this respect, which will give rise to a great deal of litigation. Maybe we should indeed set clearer limits. Specific cases and future court judgments - such as in the Wilders case - might help to clarify all this, but they might also result in more questions.”

As a criminal lawyer and as a connoisseur and follower of legal precedents, surely you have an idea of which way things are going and what the present trends are? “The ruling on 10 March 2009 did set out further guidelines - albeit new ones - for penal provision. The Supreme Court appears to regard criminal liability as a last resort, and prefers to give a restrictive interpretation in which it will be less likely, not more likely, that more remarks will be subject to criminal law.”

Friday, Februari 12th 2010 (week 6).

The issue is a section in Erasmus Magazine, the opinion and information magazine of Erasmus University Rotterdam, in which an EUR-academic responds to a current-social issue.

Paul Mevis (1959) is Professor of Criminal Law and Law of Criminal Procedure at the Erasmus School of Law. His publications include the book Capita Strafrecht, a thematic introduction to criminal law for the education sector. Mevis also publishes articles in the Dutch Law Reports magazine. The judgment referred to in this interview can be found at www.rechtspraak.nl, under National Case Law number BF0655.